The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1887-01-26

the city OF memphis Wnen Judge
Jackson was last here. That case has
been appealed to the Supreme Court,
and this opinion has been ordered to
be filed as the opinion in that case.
The Opinion.
Hammond, Judge: Following a pub
lie policy, reviewed in it's application
to The city of Memphis in Merriweath-
er vs.. Garrett, 102 U. s. 172. the Leg.
isia ure Of Tennessee in 1879 inaugu.
rated a plan Of relief for insolvent
municipal corporations, whereby it
was expected they could escape the
payment of their detts, unless the
creditors would accept the SETTLE
ments" rendered them under the pro-
visions of the legislation. The gen.
eral plan was to repeal the charters so
that there should b. no officials or
agencies liable to judicial compulsion
by mandamus, then to supply ether
agenc es OF local government invested
with all the powers of the old munich
palities, except the taxing power,
which was not only withheld but con.
spicuously prohibited to those new or
carnations, called taxing districts. "
The taxes for carrying on the new con-
trivances were to be levied directly by
the Legislature itself upon the taxa
bles within their boundaries, and that
body not being amenable to any ju-
dicial coercion by mandamus, 1t was
believed the creditors were wholly
without remedy. The Legislature
then provided for a settlement with
creditors upon the general basis of re-
funding the old Indebtedness at the
half, the amount at which the State
"settles" or Compromises" its own in
deotsdness. The taxes to pay the in
terest and principal OF the new bonds,
like other taxes for municipal
purposes, were to be levied d.
rectly by the Legislature, bat
provision ia made that in default
of such levy the taxing dis
tricts" may themselves levy the nee
essary tax. Acls 1883, chap. ITO, p.
224. This act applies to all taxing
districts" of whatever class, and by
it's twentieth section "repeals all laws
or parts of laws in conflict herewith"
Under this legislation the Supreme
Court OF Tennessee has held that by
operation OF the constitution OF the
United States forbidding a State to
pass laws impairing the obligation of
contracts, these new "taxlDg dis
tricts" are simply the successors OF
the cd corp rations, 30 far as relates
to the obligation to pay the indebted:
ness ext, ting at the time OF the repeal
of the charters, and that the creditors
may proceed against them, as such
successors, the Obligation resting upon
the inhabitants Of the particular terri
tory. O'Connor vs. Memphis; 6 Lea,
73O, 1888, 7S9. LuehImann vs. Taxing
District; 2 La, 425. The same doc
trine is affirmed by the Supreme
Court of the United States in Mobile
VS.. Watson; 116 U. S, 289.
We have Just held in Louton vs.
Taxing District (no opinion), the Cir
csit and District Judges on the bench,
upon considerations entirely sstiefac-
tory to US, that it is the logical result
of that principle, If it be not
distinctly decided in the last
cited casa, that any power of
taxation provided as means
of paying their debts, heretofore
granted to the original municipalities,
devolve, as readily as the obligation
to pay them, and by like operation OF
the Federal constitution, upon those
successors, Notwithstanding the at
tempted statutory prohibition. That
power was a grant to the Inhabitants
OF the particular municipal territory,
and not to the designated official
through whose agency it was exsr-
cised and those inhabitants may, and
mus, exercise the power, 20 far as the
old creditors are concerned, through
any new agencies existing by law and
adapted TO the work OF levyipg and
collecting taxas. AS evidence OF that
adaptation 1t may b remarked that
the taxing districts" are especially
AUTHORISED to exercise all the essential
powers of tax alton TO pay the new
bonds if the Legislature neglects that
duty and it is particularly worthy of
notice, in view Of the argument made
at the bar, that gwen agency OF the
municipal government must be desig-
mated and especially clothed by stat
ute with the power to levy and collect
taxes before the general power, de-
volyed as above mentioned, can be
exercised; that by the twelfth section
of this very act of 1883 the power is
not so conferred upon any designated
agency of the municipal government,
but only upon every municipal cor
poration or taxing district which
compromises its debts" etc
The whole argument Of the
defendant was that no given agency
of the new governments could exer-
else the taxing power, unlets ap-
pointed by law to do 80; yet, this new
legislation does not appoint any agen
cy, but confers 1t in the most general
terms, as did the old legislation, upon
the municipality itself-that is, upon
the inhabitants Of that locality. This
would seem to be q sufficient answer
to the argument, for it can hardly be
imagined that any further legislation
is necessary to enforce this power in
favor of the holders OF the new bonds
If occasion should require it; and the
mandamus would necessarily run
against the legislative and adminislra
tive officers OF the taxing dis riots,
just as we are here asked to order it,
That is to say, it is q necessary impli-
cation from the general grant Of the
taxing power that the officials Of the
Municipality exercising other legisla-
tive duties would be required to par
form this. We do not imply the grant
of taxing power as q product OF the
Federal Constitution, nor create it by
judicial judgment, not all; but we
hold that the grant heretofore made
TO the inhabitants Of the given terri
tory has never been taken away, and
while the agencies have been changed
and the methods Of taxation altered,
other agencies and other meth
DDS have been provided upon
which the law devolves the
duty embodied in the general
grant Just as il would devolve